In the Int. of: K.A.Z., Appeal of M.E.S. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INT. OF: K.A.Z., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: M.E.S., A/K/A M.L., :
MOTHER :
:
:
:
: No. 887 MDA 2022
Appeal from the Order Dated May 10, 2022
In the Court of Common Pleas of Dauphin County Orphans' Court at
No(s): 23 AD 2022
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY McLAUGHLIN, J.: FILED: DECEMBER 16, 2022
M.E.S., a/k/a M.L., (“Mother”) appeals from the order terminating her
parental rights as to her minor child, K.A.Z. (“Child”).1 Mother’s counsel has
filed an Anders2 brief and a petition to withdraw as counsel. We grant
counsel’s petition to withdraw and affirm the termination order.
Child was born in February 2019. In February 2020, Dauphin County
Social Services for Children & Youth (“Agency”) received a referral concerning
domestic violence between Mother and Father, substance abuse, and lack of
supervision of Child. N.T., 5/9/22, at 5. The Agency had previous involvement
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* Former Justice specially assigned to the Superior Court.
1 The trial court also terminated the parental rights of Child’s father, E.Z.,
(“Father”) and his appeal is pending separately at No. 877 MDA 2022.
2Anders v. California, 386 U.S. 738 (1967); see also In re V.E., 611 A.2d
1267, 1275 (Pa.Super. 1992) (holding Anders protections apply to appeals
of involuntary termination of parental rights).
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with the family. Id. In July 2020, Child was adjudicated dependent and was
placed in the custody of the Agency. Id. at 6. Child has remained in the
custody of the Agency since that time. Id. Child’s current foster home is a
pre-adoptive home. Id. at 32.
In March 2022, the Agency filed petitions for involuntary termination
of Mother’s and Father’s parental rights. A hearing on the petitions was held
on May 9, 2022. Despite being served with notice of the hearing,3 neither
parent appeared at the hearing, although each was represented by counsel.
Id. at 3-4, 10. During the hearing, Mother’s counsel received a text message
from Mother stating that she had not had a phone for some time and could
not get a ride to the hearing. Id. at 8. Based on this message, Mother’s
counsel asked for a continuance. Id. The court denied the request and found
that the parents had received notice of the hearing based on the publication
notice, the caseworker’s testimony, and Mother’s own admission in her text
message to counsel. Id. at 12. However, the court agreed to keep the record
open to allow Mother and Father a second opportunity to appear the following
day. Id. at 13-14. Mother and Father’s counsel notified Mother and Father
that they were ordered to appear in court the next day. N.T., 5/10/22, at 54-
55. However, neither parent appeared. Id. at 54.
At the hearing, the Agency presented the testimony of its caseworker,
Amber Torres. Torres testified that Mother’s goals were to cooperate with the
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3Notice of the hearing was made by publication in the Philadelphia Inquirer
and the Dauphin County Reporter. See Termination H’rg Ex. 37.
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Agency, complete a parenting program, maintain sobriety, complete domestic
violence treatment, visitation, and complete a psychological evaluation. N.T.,
5/9/22, at 15-26.
Torres testified that Mother was not compliant with her goal of
cooperating with Agency. Id. at 15. She stated that Mother failed to keep the
Agency informed of her whereabouts and had recently informed the Agency
that she and Father were homeless. Id. at 24-25.
Torres said although Mother completed a parenting program, she was
unsuccessfully discharged from numerous drug and alcohol programs and
failed to consistently provide the Agency with urine screens. Id. at 17, 19-20,
25. Torres testified that Mother tested positive for methamphetamines,
amphetamines, and marijuana as recently as one month prior to the filing of
the termination petition. Id. at 19. Torres said that Mother has not taken
responsibility for her substance abuse and instead blames the Agency as the
reason she uses drugs. Id. at 18, 40.
Torres testified that Mother failed to complete domestic violence
treatment. Id. at 23. She pointed out that Mother filed three protection from
abuse complaints against Father, but failed to appear at the hearings,
resulting in their dismissal. Id. at 22. Mother also minimized any domestic
violence between her and Father and claimed that her black eyes were the
result of walking into a broomstick. Id. at 22-23.
In terms of visitation with Child, Torres testified that although Mother
and Father had unsupervised visits for a short period of time, visits were
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reverted to supervised in January 2022 following a referral from the
Philadelphia Department of Human Services (“DHS”) regarding allegations of
substance abuse, domestic violence, and lack of supervision of Child. Id. at
6-7. DHS reported that the parents were found to have been fighting over a
crack pipe in front of Child. Id. at 16. The foster parent also reported concerns
regarding Child’s appearance, demeanor, and care after she returned from an
unsupervised weekend visit with the parents. Id. at 7. Mother and Father have
not visited Child since January 2022. Id. at 26.
Torres testified that Mother failed to comply with her final goal of
completing a psychological evaluation. Id.
Torres stated that although Child has a bond with Mother and Father,
she has been in care for over 19 months, and she is very happy in her foster
home. Id. at 31, 33-34. Torres said that all of Child’s needs are being met in
her foster home and the foster home is willing to provide permanency for her.
Id. at 31-33. Torres believed it was in Child’s best interest for the parental
rights to be terminated and that Child would suffer no detrimental harm. Id.
at 31.
Foster mother testified that she is willing and able to be a long-term
resource for Child. Id. at 47. She stated that Child is very loved in the home,
and Child has built a relationship with her husband and four other children.
Id. at 51. Foster mother testified that neither parent has reached out to her
to try to communicate with Child but that she would encourage contact
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between the parents and Child if the parents were safe, sober, and healthy.
Id. at 47, 49.
At the conclusion of the termination hearing, the court involuntarily
terminated Mother and Father’s parental rights. This appeal followed.
Mother’s counsel’s Anders brief identifies one issue:
Did the trial court abuse its discretion or commit an error of
law by determining it was in the [C]hild’s best interest to
have [M]other’s parental rights terminated by clear and
convincing evidence despite the court’s refusal to provide
[M]other with an opportunity to present evidence, on her
behalf, at the termination hearing[?]
Anders Br. at 4.
Before reviewing the merits of this appeal, we must first determine
whether counsel has satisfied the necessary requirements for withdrawing as
counsel. See Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super.
2007) (en banc) (“When faced with a purported Anders brief, this Court may
not review the merits of any possible underlying issues without first examining
counsel’s request to withdraw”). To withdraw pursuant to Anders, counsel
must: 1) “petition the court for leave to withdraw stating that, after making a
conscientious examination of the record, counsel has determined that the
appeal would be frivolous;” 2) furnish a copy of the brief to the client; and 3)
advise the client that he or she has the right to retain other counsel or proceed
pro se. Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013)
(en banc).
Additionally, in the Anders brief, counsel seeking to withdraw must:
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(1) provide a summary of the procedural history and facts,
with citations to the record; (2) refer to anything in the
record that counsel believes arguably supports the appeal;
(3) set forth counsel’s conclusion that the appeal is
frivolous; and (4) state counsel’s reasons for concluding that
the appeal is frivolous. Counsel should articulate the
relevant facts of record, controlling case law, and/or
statutes on point that have led to the conclusion that the
appeal is frivolous.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). If counsel
meets all of the above obligations, “it then becomes the responsibility of the
reviewing court to make a full examination of the proceedings and make an
independent judgment to decide whether the appeal is in fact wholly
frivolous.” Id. at 355 n.5 (quoting Commonwealth v. McClendon, 434 A.2d
1185, 1187 (Pa. 1981)).
We find that counsel has complied with all of the above technical
requirements. In his Anders brief, counsel has provided a summary of the
factual history of the case with citations to the record. Further, counsel’s brief
identifies one issue that could arguably support the appeal, as well as
counsel’s assessment of why the appeal is frivolous, with citations to the
record. Additionally, counsel served Mother with a copy of the Anders brief
and advised her of her right to proceed pro se or to retain a private attorney
to raise any additional points she deemed worthy of this Court’s review. See
Letter, filed 8/24/22.4 Mother has not responded to counsel’s petition to
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4Counsel initially filed a deficient letter, which improperly framed Mother’s
ability to respond to counsel’s motion. On August 18, 2022, this Court directed
(Footnote Continued Next Page)
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withdraw. As counsel has met the technical requirements of Anders and
Santiago, we will proceed to the issue counsel has identified.
The issue raised in counsel’s Anders brief claims that Mother was not
provided an opportunity to present evidence at the termination hearing. We
readily dispose of this issue. The record is clear that Mother failed to appear
at the termination hearing and conveniently texted her counsel during the
hearing stating that she needed transportation. Mother knew how to contact
her caseworker prior to the hearing to request assistance with transportation.
Despite Mother’s failure to appear, the court was courteous enough to
continue the matter until the next day to allow Mother to appear. Mother again
failed to appear the next day. Counsel for the Agency stated that the Agency
would have assisted in providing transportation but neither parent contacted
the Agency. The court gave Mother every opportunity to present evidence on
her behalf, but Mother failed to do so. Her claim is without merit.
We now turn to address the court’s decision in terminating Mother’s
parental rights. We review an order involuntarily terminating parental rights
for an abuse of discretion. In re G.M.S., 193 A.3d 395, 399 (Pa.Super. 2018).
In termination cases, we “accept the findings of fact and credibility
determinations of the trial court if they are supported by the record.” In re
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counsel to file a letter in compliance with Commonwealth v. Muzzy, 141
A.3d 509, 512 (Pa.Super. 2016) (clarifying that counsel’s letter to the client
shall inform appellant that upon the filing of the petition to withdraw, the client
has the immediate right to proceed in the appeal pro se or through private
counsel). Counsel complied on August 24, 2022.
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T.S.M., 71 A.3d 251, 267 (Pa. 2013) (quoting In re Adoption of S.P., 47
A.3d 817, 826 (Pa. 2012)). “If the factual findings have support in the record,
we then determine if the trial court committed an error of law or abuse of
discretion.” In re Adoption of K.C., 199 A.3d 470, 473 (Pa.Super. 2018).
We will reverse a termination order “only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will.” In re Adoption of
S.P., 47 A.3d at 826.
A party seeking to terminate parental rights has the burden of
establishing grounds for termination by clear and convincing evidence. In re
Adoption of K.C., 199 A.3d at 473. Clear and convincing evidence is evidence
“that is so clear, direct, weighty, and convincing as to enable the trier of fact
to come to a clear conviction, without hesitation, of the truth of the precise
facts in issue.” Id. (quoting In re Z.S.W., 946 A.2d 726, 728-29 (Pa.Super.
2008)).
Termination of parental rights is controlled by Section 2511 of the
Adoption Act. In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007). Under this
provision, the trial court must engage in a bifurcated analysis prior to
terminating parental rights:
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing
evidence that the parent’s conduct satisfies the statutory
grounds for termination delineated in Section 2511(a). Only
if the court determines that the parent’s conduct warrants
termination of his or her parental rights does the court
engage in the second part of the analysis pursuant to
Section 2511(b): determination of the needs and welfare of
the child under the standard of best interests of the child.
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One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond
between parent and child, with close attention paid to the
effect on the child of permanently severing any such bond.
Id. (citations omitted). To affirm the termination of parental rights, this Court
need only affirm the trial court’s decision as to any one subsection of section
2511(a). In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc).
The court terminated Mother’s parental rights pursuant to Section
2511(a)(1), (2), (5), and (8). As only one basis for termination under Section
2511(a) is necessary, we will focus our attention on the court’s termination of
Mother’s parental rights pursuant to Section 2511(a)(8). That subsection
states:
(a) General rule.--The rights of a parent in regard to a
child may be terminated after a petition filed on any of the
following grounds:
***
(8) The child has been removed from the care of the parent
by the court or under a voluntary agreement with an
agency, 12 months or more have elapsed from the date of
removal or placement, the conditions which led to the
removal or placement of the child continue to exist and
termination of parental rights would best serve the needs
and welfare of the child.
23 Pa.C.S.A. § 2511(a)(8).
Section 2511(a)(8) “sets a 12-month time frame for a parent to remedy
the conditions that led to the children’s removal by the court.” In re A.R.,
837 A.2d 560, 564 (Pa.Super. 2003). Once the 12-month period has been
proven, the court “must next determine whether the conditions that led to the
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children’s removal continue to exist.” Id. “As a result, the relevant inquiry in
this regard is whether the conditions that led to removal have been remedied
and thus whether reunification of parent and child is imminent at the time of
the hearing.” In re I.J., 972 A.2d 5, 11 (Pa.Super. 2009). “Termination under
Section 2511(a)(8) does not require the court to evaluate a parent’s current
willingness or ability to remedy the conditions that initially caused placement
or the availability or efficacy of Agency services.” In re Z.P., 994 A.2d 1108,
1118 (Pa.Super. 2010).
Here, it is undisputed that, at the time of the filing of the termination
petitions, Child had been out of Mother and Father’s care in excess of 19
months. Therefore, we next focus our inquiry on whether the conditions that
led to Child’s removal from parental care continued to exist at the time the
court terminated the parental rights.
The record supports the court’s finding that the conditions that led to
Child’s removal from Mother's care continue to exist. The conditions that led
to removal were domestic violence, substance abuse, and lack of supervision
of Child. The record shows that Mother failed to complete domestic violence
treatment. Although Mother filed at least three protection from abuse
complaints against Father, she failed to appear at the hearings, resulting in
their dismissal. Mother also minimized any domestic violence between her and
Father and stated that her black eyes were the result of an accident.
Mother also failed to complete drug and alcohol treatment and continued
to test positive for drugs one month before the filing of the termination
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petition. It was evident that Mother failed to take any responsibility for her
drug use and blamed the Agency as the reason she uses drugs. It was also
reported at the termination hearing that Mother and Father were homeless.
After the last visit with the parents, Child was returned to foster mother
in a disheveled state. Mother has had no contact with Child since January
2022. Child cannot linger in care waiting for Mother to be in a position to meet
Child’s needs. This Court has explained:
We recognize that the application of Section (a)(8) may
seem harsh when the parent has begun to make progress
toward resolving the problems that had led to removal of
her children. . . . However, by allowing for termination when
the conditions that led to removal of a child continue to exist
after a year, the statute implicitly recognizes that a child’s
life cannot be held in abeyance while a parent attempts to
attain the maturity necessary to assume parenting
responsibilities. The court cannot and will not subordinate
indefinitely a child’s need for permanence and stability to a
parent’s claims of progress and hope for the future.
In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa.Super. 2006).
Because Mother failed to remedy the situation that led to Child’s removal
from her care, and as discussed below, termination of parental rights would
best serve the needs and welfare of Child, we find no reasonable basis on
which to argue that the trial court improperly concluded that the requirements
of Section 2511(a)(8) were satisfied. This issue is frivolous.
Under Section 2511(b), the trial court must consider “the
developmental, physical and emotional needs and welfare of the child” to
determine if termination of parental rights is in the best interest of the child.
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See 23 Pa.C.S.A. § 2511(b). This inquiry involves assessment of “[i]ntangibles
such as love, comfort, security, and stability[.]” In re C.M.S., 884 A.2d 1284,
1287 (Pa.Super. 2005). The court must also examine the parent-child bond,
“with utmost attention to the effect on the child of permanently severing that
bond.” Id. However, the “mere existence of an emotional bond does not
preclude the termination of parental rights.” In re N.A.M., 33 A.3d 95, 103
(Pa.Super. 2011). Rather, the trial court must consider whether severing the
bond “would destroy an existing, necessary and beneficial relationship.” Id.(citation and internal quotation marks omitted). The court must also examine
any pre-adoptive home and any bond between the child and the foster
parents. In re T.S.M., 71 A.3d at 268.
Here, the court found that termination of Mother’s parental rights was
in Child’s best interests. There was evidence that Child is happy, secure, loved,
and thriving in her foster home, and there was testimony that Child would
suffer no detrimental harm if Mother’s parental rights were terminated. We
perceive no reasonable basis on which to challenge the court’s conclusion that
termination of Mother’s parental rights would be in Child’s best interests.
To summarize, we find that the issues raised in counsel’s Anders brief
are wholly frivolous. Further, after an independent review of the record, we
conclude that no other, non-frivolous issue exists. Therefore, we grant
counsel’s petition to withdraw. Having determined that the appeal is wholly
frivolous, we affirm the order terminating Mother’s parental rights.
Petition to withdraw as counsel granted. Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2022
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